Estate of Kam

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (PROBATE NO. 05-1-0290)

Mark W.S. Young, Respondent-Appellant, pro se.

Joyce K. Matsumori-Hoshijo, for Petitioner-Appellee.

Foley, Presiding Judge, Fujise and Ginzoa, JJ.

SUMMARY DISPOSITION ORDER

Respondent-Appellant Mark Young (Young), pro se, appeals from a December 3, 2 008 First Circuit Probate Court (Probate Court) Judgment On Order Granting Petition For Approval of Final Accounts and Distribution and Complete Settlement of Estate (Judgment) of Petitioner-Appellee The Estate of Samuel Wah Kam, also known as York Wah Kam (Estate) .[1] On appeal, Young maintains that the Probate Court erred by finding that the Estate's counsel's (Counsel) fees and costs were reasonable and ordering payment of the requested amounts.

After careful review of the issues raised, the parties' arguments, record on appeal, and legal authorities, we resolve Young's appeal as follows and affirm.

Young states that "the only issue being appealed is the reasonableness of the attorney fees."[2] Young argues, among other things, that Counsel double-charged, her fees were excessive and violated the Hawaii Rules of Professional Conduct (HRPC), Counsel had the burden of proving that the hours charged were necessary, and the sale of the house was hampered by allowing the decedent's friend and his family to stay at the house rent-free. We disagree. Hawai'i Probate Rules (HPR) Rule 40 is applicable here[3] and sets the standard for attorneys' fees as reasonableness under all the circumstances. HPR Rule 41, entitled "Evidence and Notice[, ]"[4] sets forth the procedure by which an interested person may object to an attorney's requested fees and costs and requires that the objection be made before the hearing on the fee request.

Young fails to indicate how the Probate Court abused its discretion in its finding that Counsel's fees and costs were reasonable under the standard set out in HPR Rule 40. Furthermore, the record indicates that Young failed to timely object under HPR Rule 41 to Counsel's affidavits for fees and costs, except for the affidavit filed on March 7, 2007.

In her March 7, 2007 affidavit for fees and costs covering the period from March 11, 2006 through February 24, 2007, Counsel requested $14, 863.11.[5] In his March 14, 2007 position statement, Young argued that Counsel's request for attorneys' fees and costs for this period was excessive and that Counsel's "role was limited and thus, the necessity for these fee amounts is not demonstrated on this record." Young did not raise additional arguments, including the double-charging objections to costs that he now makes on appeal, in this position statement.

In the Probate Court's March 30, 2007 order, it found Counsel's request for fees and costs in the First Amended Affidavit to be reasonable.

Young argues that the Probate Court improperly allowed Counsel "to double charge for selling a house, where [Counsel] charged $14, 8 63.11 to sell the house in addition to an hourly rate to 'protect' the estate[.]". Young's argument is not supported by the record. Counsel's First Amended Affidavit itemizes all of her work performed from the. period of March 16, 2 006 through February 24, 2 007, and it details her services rendered that go beyond just "selling a house." Similar to Counsel's January 26, 2006 and March 15, 2 006 affidavits, her First Amended Affidavit includes descriptions of services rendered, the dates they were performed, and the amount of time spent on each service. We do not find, nor does Young identify, any evidence of double-charging on Counsel's itemized list of services performed.

Because we find no evidence in the record indicating an abuse of discretion by the Probate Court in approving Counsel's fees and costs for work performed from March 16, 2006 through February 24, 2007, we reject Young's arguments challenging the reasonableness of these fees and costs.

Young's reference to the HRPC is inapposite because the HRPC does not establish any legal basis for Young's contention that the Probate Court's award of attorney's fees and costs was improper. The scope of the HRPC provides, in relevant part, "[v]iolation of a rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. . . . [The rules] are not designed to be a basis for civil liability." HRPC Scope H[6].

Young's argument that the delay in the sale of the house caused the sale to miss the real estate boom, resulting in a lower sales price, also must fail. Young offers no evidence in the record in support of his argument that the occupancy of the Estates1 property by decedent's friend and his family hurt the Estate, and we find none.

In sum, we cannot conclude that the Probate Court abused its discretion by ordering payment of Counsel's requested fees and costs, totaling $51, 953.38, in light of the facts and evidence in the record.

Therefore the First Circuit Probate Court's December 3, 2008 Judgment is affirmed.

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